#### James F. GENTRY, Appellant, v. The STATE of Texas, Appellee.

No. 27478.

Court of Criminal Appeals of Texas.

March 23, 1955.

Rehearing Denied May 18, 1955.

*299M. D. Emerson; Paris, for appellant.

Leon Douglas, State’s Atty., Austin, for the State.

WOODLEY, Judge.

The conviction is for transporting beer and whisky in a dry area; the punishment, enhanced because of a prior conviction for an' offense of .like character, eighteén months in jail-and a finé of $1,000.. ,

Appellant, not having testified or offered evidence in his behalf, .challenges the sufficiency of the evidence to sustain the conviction. . ...

The dry status of the area -was admitted and appellant was shown to have been previously convicted of possessing whisky in á dry area for the purpose of sale.

The evidence shows that o.n January 11, Í954, appellant was permitted to take a Light Green 1951 Chevrolet Tudor Style-line Deluxe car, which he was .negotiating to purchase, from the Rocket Motor Company for demonstration purposes. This car was identified- by one of its owners as being involved in a collision the following morning. ' ;

J.errold Daniel,, a 21. year old grocery clerk, testified that he was acquainted with appellant and identified him as one of the-two occupants, of'a. 1951-Green Chevrolet which was involved.in an accident at the intersection of 40th Street and Avenue P, in Lubbock,' shortly after 7':20 A.M., which was before daylight, on'January 12,' 1954.'

Daniel testified' that the car overtook and passed him on Avenue P, some' 4: ’blocks from the scene of the collision; tliat'h'e' did not witness the accident, probably-bécaüse ■ of the flying dust and thfe'dárknéss,í'-'büt stopped when he. came.to. thq wreck;-that he saw appellant at the steering., wheel.; on -the driver’s, side of the .1.951 Greep Chqvrpr. let.. The. front end- of the cqn.wps. m^sjied and appellant and his. unidentified pompan-. ion on his right were against/the windshield and were unable to get out-until the witness and others opened the door. for them-.

Daniel further -testified that the alto-mobile in which the' defendant -was Seated had an odor of alcohol’ around it, and>-dVer' objection said .that, seyer.al, ca.ses.^pf J>eer were stacked in the ..car between-trip Profit. and back seat. Also he testified, that. jie, heard appellant say “does anybody ;hayé a , car that they can put this stuff in S’!*,

■'The other Car involved in the'‘ Collision-was described by Daniel as a 1940 Chevrolet. ■

Officers arrived at the scene pf,.tlje accident while Daniel was there. ; City, Police Officers Love, Davis, .Miller and Lieutenant . Burdett went to the, seen? in response to; .the - report that a wreck had occurred. - Officer., Love testified that he directed traffic near the scene, and was then dispatched' to “follow a car that was loadéd with liquor to the Rainbow Garage, to bé 'turhé'd over • to the Liquor Board”; and he - folldwed' it “right on the bumper- on'-to the’Ráinbów Garage.”

Asked to describe thé car he .wasdirected to' follow, Love téstified ' “ít1 waá á' ’.51 Chevrolet Power Glide', íáuj'license'hümbér was . BA 5399. I "don’t, remember' whether a four door or túdor.” , .. -

' Appellant-relies strongly upon ■ thei;w(>fd “tan”-in this testimony,-pointing out that-the' car which-appellant borrowed'knd in:'which 1 he was seated under the' steering wheel Was -- greeñ in color. • •• ; hnii.Ti.

Love identified the car as being a ’51 Chevrolet," and '’further 'testified’Thai1'he observed'in'the car"“a lárgé ¿jüaHtity1 of" *300beer and whisky” — “quite a few bottles had been, broken and we followed it to the Rainbow Garage and Officer Truly o,f the Liquor Board took possession of it and salvaged what he could.”

Officer Miller conversed with appellant at the scene óf the accident and áppellant told him that he was driving the ’51 Chevrolet involved in the collision. He further testified that he observed in the car which appellant said he was driving, “a quantity of álcóholic beverage”, and that he directed Officer Lóvé: to take charge'of the car until it was properly turned over to the State Liquor Control Board, and he knew that Love ■ did then take charge of it there at the scene.

John Truly, of The Texas Liquor Control Board assigned to the Lubbock District, testified that Officer Love turned over to him, and he took from a wrecked ’51 Chevrolet at' the Rainbow Garage,’ 168 twelve ounce, cans of Budweiser Beer, 168 twelve ounce cans <?f - Mitchell’s Beer, 4 four-fifth quarts of Old Charter Whisky, 2 four-fifth quarts of Bourbon Deluxe Whisky, and 1 four-fifth quart of'Seagram Seven Crown Whisky and a number of broken' bottles.' The'beer and whisky was offered in evidence.

Appellant strenuously objected to the introduction of the beer in evidence, and-reserved a bill each time a witness, (and' ,on one occasion the judge) referred to, the contents,pf the car, the cases, or the cans as-beer.

It being shown beyond question that the car contained several quarts of whisky, it does not appear to be controlling whether the contents of the cases and cans was beer or not. * lidwever, the evidence shows that the cans were labeled as a well known law-fijlly. manufactured brand of beer, the cases were sealed and similarly labeled, and ■ the vyitness, having testified to his ability to .so determine the question, opened á can,. smelled the contents and testified that it was beer.

The trial court’s prompt withdrawal of his reference to the exhibit as beer, and the evidence mentioned, removed any question as to his remark calling for reversal.

We find the evidence sufficient to show that the car from which the beer and whisky was taken by Inspector Truly was the same car which was- driven and occupied by appellant at the time of the collision, and find the evidence sufficient to sustain the conviction for transporting such beer and whisky in a dry area.

The remaining bill which requires discussion relates to argument of the attorney for the State. The argument complained of in the bill was:

> “Now, these witnesses we have brought before you today, we’ve had officers, we’ve had a Tech student, a boy that is a grocery' clerk out-here— I think some of them .probably sitting in the audience now — and gentlemen, they are interested in this case and I’m interested in this case, there’s a lot of people interested in, this case besides James Gentry, and you don’t ■ have to assume that.’* ’ . • - ¡

The objection was that' the- remarks constituted unsworn testimony and were inflammatory and prejudicial, ¿rid' the trial, court was requested to instruct the jury not to consider the remarks for any purpose, but the objection was overruled and the request denied.

The bill certifies that no witness had testified that he had an interest in the case; that the court had no recollection of whether or not the remarks were invited by any argument qf defense counsel, and the punishment assessed by the jury was stated.

Appellant would have us construe the remarks as. haying led the jury to understand that the people referred to as well as “lots of people” had expressed their interest in the case to the County Attorney, arid therefore constituted unsworn testimony that was inadmissible because it was hearsay and further would have been inadmissible if the hearsay feature was not present.

We are unable to agree with such con-, struction, and call attention to the fact,that *301the complained of remarks dó not show whether the interest of the parties"referred to was favorable or unfavorable to appellant. Further, the remarks cannot be construed to indicate that the people referred to were asking the . jury to convict appellant or assess a heavy .penalty against him.

We fiiid no reversible error in the bill mentioned or in the remaining complaints raised by ¿'ppeliaht.

The judgment is affirmed.